Citation Nr: 9912886
Decision Date: 05/11/99 Archive Date: 05/21/99
DOCKET NO. 98-13 610 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boise,
Idaho
THE ISSUE
Entitlement to service connection for residuals of pneumonia.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. Odlum, Associate Counsel
INTRODUCTION
The appellant had active military service from January 1959
to December 1971.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from a rating decision from the Boise, Idaho,
Department of Veterans Affairs (VA) Regional Office (RO)
denying service connection for residuals from pneumonia.
The appellant has been granted service connection for
postoperative left orchiectomy, tinnitus, bilateral hearing
loss, and hemorrhoids. He has not raised any current appeals
relating to any of these service connection ratings.
The appellant testified before the hearing officer at the RO
in June 1998. In a January 1999 VA Form 9, the appellant
requested a hearing before a Traveling Member of the Board.
In a March 1999 statement in support of the claim, the
appellant's representative did not want a hearing before the
Board. 38 C.F.R. § 20.704(e) (1998).
FINDING OF FACT
The claim for entitlement to service connection for residuals
of pneumonia is not supported by cognizable evidence showing
that the claim is plausible or capable of substantiation.
CONCLUSION OF LAW
The claim of entitlement to service connection for residuals
of pneumonia is not well grounded. 38 U.S.C.A. § 5107(a)
(West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual Background
The service medical records show that the veteran was
admitted to the hospital on October 3, 1969 with a two-day
history of general malaise. On examination, chest x-rays
revealed left lingular infiltrate, and the veteran was
diagnosed with pneumonia lingular. According to the
discharge report, the veteran was treated with Tetracycline,
and his condition improved rapidly. It was also noted that
the veteran's chest x-ray cleared with treatment. The
veteran was discharged on October 21, 1969.
The veteran was seen once in April 1971 with complaints of
cold symptoms, and again in October 1971 with complaints of a
1.5-week history of malaise. The veteran complained of cold
symptoms, a cough, aching joints, a sore throat, fatigue, and
headaches. He also reported that his cough and sore throat
had gone away two days prior to the examination. On
examination, the veteran's chest was clear, and he was
diagnosed with an upper respiratory infection.
At his separation examination in November 1971, the veteran
showed no evidence of any pulmonary problems. Examination of
the veteran's chest and lungs was normal. A chest x-ray was
also performed and was found to be within normal limits.
Following his separation from service, there is no evidence
of the veteran receiving medical attention for any pulmonary
problems until his VA examination in September 1997.
The veteran underwent an audiological examination in August
1985 during which no pulmonary problems were alleged.
In his claim for service connection, the veteran alleged that
he had been treated for lung problems six or seven years
earlier at the VAMC in Kerrville, Texas.
Records from that facility show that the veteran was seen
there intermittently between February 1991 and January 1992.
They do not show the veteran was evaluated or treated for
symptoms relating to a pulmonary disorder, including
shortness of breath. They show the veteran was examined,
beginning in February 1991, for complaints of chest pain. A
chest x-ray performed in February 1991 revealed no evidence
of any recent infiltrates.
There are no medical records of any kind after 1992 until the
veteran's VA examination conducted in September 1997. At
this examination, the veteran stated that he had been
experiencing shortness of breath since his hospitalization
for pneumonia in 1969. He stated that he was no longer able
to play the kinds of sports he had played in the past. The
veteran stated that a physician had told him there was a scar
on his chest x-ray because of his pneumonia, which would
cause him to be short of breath. He denied any recurrences
of his pneumonia. Chest x-rays revealed a linear area of
atelectasis in the left base, but no evidence of acute
pulmonary disease. On pulmonary function testing, the
appellant attained an forced expiratory volume (FEV1) level
of 1.99 liters, or 51% of the predicted value of 3.88 liters.
The pulmonary function test was interpreted as indicating
restrictive lung disease with moderate obstructive disease of
the large and small airways. The appellant was diagnosed
with a history of lobar pneumonia in 1969 (treated) and
complaints of shortness of breath with pulmonary function
studies showing restrictive lung disease with moderate
obstructive disease of the large and small airways.
At his personal hearing in June 1998, the appellant testified
that he had been admitted to the hospital for 18 days for
pneumonia. Transcript, p. 2. The appellant testified to
suffering from shortness of breath with diminished activities
since coming down with pneumonia while in the service. Tr.,
pp. 2-3. He testified that he did not see any physicians
specifically for his symptoms after leaving the service;
however, he reported going to yearly physicals. Tr., pp. 2
and 5. He also stated that he had seen physicians who had
asked him about scarring on his lungs.
He stated that they had asked him whether he had had
pneumonia.
The appellant stated that he had answered in the affirmative
and stated that these physicians told him that his lung
scarring is related to his in-service bout of pneumonia.
Tr., p. 3. When asked, the appellant was unable to give any
specific names of doctors or hospitals where he received such
attention. Tr. pp. 5-6. The appellant again did not specify
any of the names of these physicians or the locale where they
worked. He testified that he had smoked cigarettes for 15
years but that he had not smoked for the last 22 years. Tr.
pp. 3-4. He also testified that he treated his symptoms with
over-the-counter medications. Tr., pp. 3 and 5.
Criteria
Pursuant to 38 U.S.C.A. § 5107(a), a person who submits a
claim for benefits under a law administered by the Secretary
shall have the burden of submitting evidence sufficient to
justify a belief by a fair and impartial individual that the
claim is well grounded. The United States Court of Appeals
for Veterans Claims (known as the United States Court of
Veterans Appeals prior to March 1, 1999) (hereinafter, "the
Court") has held that a well-grounded claim is "a plausible
claim, one which is meritorious on its own or capable of
substantiation. Such a claim need not be conclusive but only
possible to satisfy the initial burden of § 5107(a)."
Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990).
The Court has held that a well grounded claim requires
competent evidence of current disability (a medical
diagnosis), of incurrence or aggravation of a disease or
injury in service (lay or medical evidence), and of a nexus
between the in-service injury or disease and the current
disability (medical evidence). See Epps v. Brown, 9 Vet.
App. 341, 343-44 (1996); Caluza v. Brown, 7 Vet. App. 498,
506 (1995) aff'd, 78 F.3d 604 (Fed.Cir. 1996).
In order to establish service connection for a claimed
disability the facts must demonstrate that a disease or
injury resulting in current disability was incurred in the
active military service or, if pre-existing active service,
was aggravated therein. 38 U.S.C.A. § 1110 (West 1991);
38 C.F.R. § 3.303 (1998).
The Court has also held that although a claim need not be
conclusive, the statute provides that it must be accompanied
by evidence that justifies a "belief by a fair and impartial
individual" that the claim is plausible. Tirpak v.
Derwinski, 2 Vet. App. 609, 610 (1992).
In determining whether a claim is well-grounded, the
supporting evidence is presumed to be true; however, an
appellant's statements will not support a well-grounded claim
when the fact asserted is beyond the competence of the person
making the assertion. King v. Brown, 5 Vet. App. 19 (1993).
The Court has held that "where the determinative issue
involves medical causation or a medical diagnosis, competent
medical evidence to the effect that the claim is 'plausible'
or 'possible' is required." Heuer v. Brown, 7 Vet. App.
379, 384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93
(1993) (citing Murphy, at 81).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
When, after consideration of all of the evidence and material
of record in an appropriate case before VA, there is an
approximate balance of positive and negative evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant.
38 U.S.C.A. § 5107(b) (West 1991 & Supp. 1998); 38 C.F.R. §§
3.102, 4.3 (1998).
Analysis
The appellant was diagnosed with pneumonia while in the
service. He has a current disability of restrictive lung
disease with moderate obstructive lung disease of the large
and small airways. He has alleged that he has suffered from
continued shortness of breath with decreased ability to
engage in exertional activities. He alleges that this is
secondary to his pneumonia while in the service.
While a lay person is competent to provide evidence on the
occurrence of observable symptoms during and following
service, such a lay person is not competent to make a medical
diagnosis or render a medical opinion, which relates
a medical disorder to a specific cause. Espiritu v.
Derwinski, 2 Vet. App. 492,
494-495 (1992). Therefore, if the determinant issue is one
of medical etiology or a medical diagnosis, competent medical
evidence must be submitted to make the claim well grounded.
In addition, lay assertions of medical causation cannot
constitute evidence to render a claim well grounded if no
cognizable evidence is submitted to support a claim.
Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993).
In this case, there is no cognizable medical evidence
supporting a nexus between the appellant's in-service
pneumonia and his current disability. There are no medical
records showing that the appellant was treated for pneumonia
residuals following his discharge from the hospital for
pneumonia while in the service. He showed no evidence of a
pulmonary impairment at his separation examination, and a
chest x-ray taken at his separation examination was found to
be normal. Following his discharge from service, there is no
available medical evidence of the appellant receiving
professional medical treatment for pulmonary complaints until
his VA examination in September 1997, a period of over 20
years.
At the hearing and the VA examination, the appellant alleged
that physicians had told him that he had scar tissue on his
lungs and that such scarring was related to his in-service
pneumonia.
Pursuant to 38 U.S.C.A. § 5103(a), if VA is placed on notice
of the possible existence of information that would render
the claim plausible, and therefore well grounded, VA has the
duty to advise the appellant of the necessity to obtain the
information. McKnight v. Gober, 131 F.3d 1483, 1484-1485
(Fed. Cir. 1997); Robinette v. Brown, 8 Vet. App. 69, 80
(1995).
However, such evidence must be identified with some degree of
specificity. See Carbino v. Gober, 10 Vet. App. 507, 510
(1997) (holding that testimony regarding statements of an
unidentified doctor purportedly linking appellant's
sarcoidosis to service did not trigger the duty to notify of
further evidence necessary to well-ground service connection
for appellant's death resulting from sarcoidosis).
In this case, the appellant failed to provide the name or
names of the physician or physicians that purportedly linked
the appellant's residuals of pneumonia to service. Nor has
he provided a date or dates as to when these opinions were
supposedly rendered. Therefore, the Board finds that the
appellant's account of physician statements linking his in-
service pneumonia to his current disability is too attenuated
to trigger the application of 38 U.S.C.A. § 5103(a). Carbino
v. Gober, 10 Vet. App. 507, 510 (1997).
The Board views its foregoing discussion as sufficient to
inform the veteran of the elements necessary to complete his
application to reopen the claim. See Graves v. Brown, 8 Vet.
App. 522 (1996); Robinette v. Brown, 8 Vet. App. 69, 77-78
(1995); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997);
Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997).
For these reasons, the Board finds that the appellant has not
presented or identified probative medical evidence of a nexus
between his current pulmonary disorder and his pneumonia
incurred while in the active military service. Consequently,
the Board concludes that the veteran's claim of entitlement
to service connection for the residuals of pneumonia is not
well grounded. 38 U.S.C.A. § 5107(a).
As the veteran's claim for service connection for residuals
of pneumonia is not well grounded, the doctrine of reasonable
doubt has no application to his case.
The Court has held that if the appellant fails to submit a
well grounded claim, VA is under no duty to assist in any
further development of the claim. 38 U.S.C.A. § 5107(a);
Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Grottveit v.
Brown, 5 Vet. App. 91, 93 (1993); 38 C.F.R. § 3.159(a)
(1998).
The appellant's representative contends that subsequent to
the Court's decisions pertaining to this issue, VA expanded
its duty to assist him in developing evidence to include the
situation in which the appellant has not submitted a well
grounded claim. Veterans Benefits Administration Manual <21-
1, Part III, Chapter 1, 1.03(a), and Part VI, Chapter 2,
2.10(f) (1996).
The appellant's representative further contends that the M21-
1 provisions indicate that the claim must be fully developed
prior to determining whether the claim is well grounded, and
that this requirement is binding on the Board.
The Board, however, is required to follow the precedent
opinions of the Court. 38 U.S.C.A. § 7269 (West 1991);
Tobler v. Derwinski, 2 Vet. App. 8, 14 (1991). Subsequent to
the revisions to the M21-1 manual, in Meyer v. Brown, 9 Vet.
App. 425 (1996), the Court held that the Board is not
required to remand a claim for additional development, in
accordance with 38 C.F.R. § 19.9 (1998), prior to determining
that a claim is not well grounded.
The Board is not bound by an administrative issuance that is
in conflict with binding judicial decisions, and the Court's
holdings on the issue of VA's duty to assist in connection
with the well grounded claim determination are quite clear.
Bernard v. Brown, 4 Vet. App. 384, 394 (1993); 38 C.F.R.
§ 19.5 (1998).
The Board has determined, therefore, that in the absence of a
well grounded claim for service connection for residuals of
pneumonia, VA has no duty to assist the appellant in
developing his case.
ORDER
The veteran not having submitted a well grounded claim of
entitlement to service connection for residuals of pneumonia,
the appeal is denied.
RONALD R. BOSCH
Member, Board of Veterans' Appeals